About Me

The California Division of Labor Standards Enforcement has issued a memorandum to its deputy labor commissioners instructing them to follow the court of appeal's decision in Brinker v. Superior Court (Hohnbaum). (If you don't know what Brinker is, see here).

It is unclear whether DLSE will follow this enforcement policy if the Supreme Court accepts review. Also, there is some indication the legislature could address meal periods as part of the state budget negotiations. Finally, if an employee files in court, the DLSE memo will not have much force. So, be cautious before changing your policies until this all shakes out. For now, though, the DLSE is following Brinker. Here is the text of the memo (footnotes omitted):

On July 22, 2008, the California Court of Appeal issued its decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum), (2008) ___ Cal.App.4th ___ , 2008 WL 2806613. The court in Brinker decided several significant issues regarding the interpretation of California’s meal and rest period requirements. The decision is a published decision, and its rulings are therefore binding upon the Division of Labor Standards Enforcement (DLSE).

The decision in Brinker included the following rulings regarding the interpretation of California’s meal and rest period requirements:

Meal Periods

• The court held that Labor Code § 512 and the meal period requirements set forth in the applicable wage order mean that employers must provide meal periods by making them available, but need not ensure that they are taken. Employers, however, cannot impede, discourage or dissuade employees from taking meal periods.1

• The court rejected the so-called “rolling five-hour” requirement as being inconsistent with the plain meaning of Labor Code § 512 and the applicable wage order.2 An employer must make a first 30-minute meal period available to an hourly employee who is permitted to work more than five hours per day, unless (1) the employee is permitted to work a “total work period per day” that is six hours or less, and (2) both the employee and the employer agree by “mutualconsent” to waive the meal period.3 The court also found section 512 to plainly provide that an employer must make a second 30-minute meal period available to an hourly employee who has a “work period of more than 10 hours per day” unless (1) the “total hours” the employee is permitted to work per day is 12 hours or less, (2) both the employee and the employer agree by “mutual consent” to waive the second meal period, and (3) the first meal period “was not waived.”4 Employers are not required to provide a meal period for every five consecutivehours worked.5 The court held that the employer’s practice of providing employees with an “early lunch” within the first few hours of an employee’s arrival at work did not violate California law, even though that would mean that the employee might then work in excess of five hours without an additional meal period.6

Rest Periods

• The court held that the rest period requirements set forth in the applicable wage order mean that employers must provide rest periods, but need not ensure that they are taken. Employers, however, cannot impede, discourage or dissuade employees from taking rest periods.7

• The court held that employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period.8 The court interpreted the phrase “major fraction thereof” to mean the time period between three and one-half hours and four hours and not to mean that a rest period must be given every three and one-half hours.9 In so doing, the court rejected as incorrect a 1999 interpretation by the Labor Commissioner that the term “major fraction thereof” means an employer must provide its employees with a 10-minute rest period when the employees work any time over the midpoint of each four hour block of time.10 The court ruled that the rest periods must be given if an employee works between three and one-half hour and four hours, but if four or more hours are worked, it need be given only every four hours, not every three and one-half hours.11

The court also ruled that the applicable wage order rest period provisions do not require employers to authorize and permit a first rest period before the first scheduled meal period. Rather, the applicable language of the wage order states only that rest periods “insofar as practicable shall be in the middle of each work period.” Accordingly, the court concluded, as long as employers make rest periods available to employees, and strive, where practicable, to schedule them in the middle of the first four-hour work period, employers are in compliance with that portion of the applicable wage order.12

The court relied upon the plain meaning of the Labor Code and applicable wage order provisions in making its determinations. The court found persuasive the reasoning in the federal district court decisions in White v. Starbucks (ND Cal. July 2, 2007) 497 F.Supp.2d 1080 and Brown v. Federal Express Corp. (CD Cal. Feb. 26, 2008) 2008 WL 906517, and concluded that employers need not ensure meal periods are actually taken, but need only make them available.13 The court distinguished the decision in Cicairos v. Summit Logistics, Inc. (2006) 133 Cal.App.4th 949, concluding that the facts in Cicairos established that the employer failed to make meal periods available to employees and that the court there only decided meal periods must be provided, not ensured.14 All staff must follow the rulings in the Brinker decision effective immediately and the decision shall be applied to pending matters. Please ensure that any wage claim filed with DLSE that has a meal or rest period issue is reviewed by your Senior Deputy prior to making any final determination on its merits.

Contrary to what you may think, not all California employment laws are passed on the final day of the legislative session. The legislature not only passed SB 940 in July, but also the Governor signed it. The text of the new law is here.

This new law will change payroll practices applicable to "temporary service" workers as defined in the statute. New Labor Code section 201.3 defines "Temporary services employer" as follows:

an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions:(A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services.(B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments.(C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer.(D) Assigns or reassigns workers to perform services for clients or customers.(E) Sets the rate of pay of workers, whether or not through negotiation.(F) Pays workers from its own account or accounts. [and](G) Retains the right to hire and terminate workers.

However, "Temporary services employer" does not include any of the following: (A) A bona fide nonprofit organization that provides temporary service employees to clients. (B) A farm labor contractor, as defined in subdivision (b) of Section 1682. (C) A garment manufacturing employer, which, for purposes of this section, has the same meaning as "contractor," as defined in subdivision (d) of Section 2671.

So, if you're a "temporary services employer," or if you use one, read on:

- Unless an exception applies below, covered temporary workers must be paid weekly. Wages for the current week's work are due on the pay day of the following calendar week.

- When an assignment is completed, the final wages for the assignment may be paid on the regular pay day in the week following the completion of the assignment (not the final day).

- If a temp is assigned to work "day to day," from a centralized pool, employees' wages are due AT THE END OF EACH DAY, but only if (A) The employee reports to or assembles at the office of the temporary services employer or other location. (B) The employee is dispatched to a client's worksite each day and returns to or reports to the office of the temporary services employer or other location upon completion of the assignment. (C) The employee's work is not executive, administrative, or professional, as defined in the wage orders of the Industrial Welfare Commission, and is not clerical.

- Striker replacements - Temporary services employees used for strike replacements must be paid AT THE END OF EACH DAY.

- Except as stated above, temporary services employees who are fired by the agency or who quit are paid final pay in the regular way (Lab. Code sections 201, 202).

- None of these rules apply if the employee is assigned to a client for more than 90 days, unless the agency pays weekly in accordance with this new provision.

Employers who use temporary agencies should ensure their vendors comply with these sections, as employees have been known to assert "joint employer" wage claims against the client and the agency.

Those of you who hire striker replacements from temporary agencies should ensure that the agency is capable of paying employees daily.

The Equal Employment Opportunity Commission updated its Compliance Manual's section on discrimination based on religion. View it here. This chapter covers the following, according to the EEOC:

I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

This revision gives employers and their lawyers a good opportunity to refresh their understanding of what "religion" means under Title VII and employers' obligations not only to "reasonably accommodate" religious practices, but also to refrain from discrimination, harassment and retaliation based on religion.

Here are our articles summarizing the past term's significant employment law decisions from the California and U.S. Supreme Courts. We do this every year no matter how many times you tell us not to. After all, we can't just abandon those firms who glom onto our work product without attribution. Click here:

We will write more later. But let us be one of the first to welcome the Court of Appeal's decision in Brinker v. Superior Court (Hohnbaum) (opinion here). Here is the court's holding.

we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment.Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured,"individual issues predominate and, based upon the evidence presented to the trial court,they are not amenable to class treatment. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.

Wow. So, this is a major decision that could bring meal and break period class actions to a screeching halt, even though the Legislature does not seem inclined to do so. The only thing is, if the Supreme Court grants review, the decision could disappear for as much as a couple of years and could get reversed by the High Court.

So, champagne breaks in the HR department need not be provided or offered - yet.

Most of us who practice or work in California don't think much about the federal minimum wage. That's because California's minimum wage is far higher than the federal standard. Those of you not subject to California's $8.00 minimum may be interested in the upcoming increase to the federal minimum. The FLSA minimum wage will rise $5.85 to $6.55 per hour on July 24, 2008. It will increase again to $7.25 on 7/24/09, too. Here's a U.S. DOL fact sheet on the federal minimum wage.

Farrell worked for Tri-County Metropolitan Transportation District of Oregon. The district denied some FMLA requests that Farrell made because of his own conditions. A jury awarded him $1,110 in lost wages for the work time Farrell lost because of the emotional distress he suffered when the district denied his FMLA claim. Although emotional distress damages are not available under the FMLA, lost work time is. So, the Ninth Circuit decided, a jury was entitled to award Farrell lost wages due to emotional distress.

The case is Farrell v. Tri-County Metropolitan Transportation District of Oregon and the opinion is here.

You can call it the anti-certification motion, the motion to de-certify, or a motion to strike class allegations. Some employers bring preemptive motions to head off plaintiffs' motions for class certification. That's a bold move that could stop a class action in its tracks. Or it could result in a denial that portends rough going when the plaintiff ultimately seeks certification.BCBG is a retailer who was party to a wage and hour class action (exemptions) that lasted some three years before the company decided to bring matters to a head. The plaintiffs argued that there was no such thing as a motion to strike class allegations. But the court of appeal upheld the procedure here. The case is In re BCBG Overtime Cases.

Chaplains at the (Alameda County) Santa Rita jail brought suit for unpaid overtime and meal / rest periods under the Labor Code. The Court of Appeal affirmed the County's demurrer to the complaint. The court recognized that Alameda County is a "charter" county with the constitutional power to control employees' "compensation." Since overtime and meal/rest period payments are part of "compensation," the applicable provisions in the Labor Code did not apply. (The county has its own provisions regarding such compensation.)